Thursday, December 08, 2016

Some Democrats are raising concerns that Trump is nominating retired generals for cabinet posts. With the nomination of retired Marine General John F. Kelly to be Secretary of Homeland Security, he will now have three generals in his administration with General Mattis at Defense and Army Lt. Gen. Michael Flynn for national security adviser. He's also considering Navy Admiral Michael Rogers for director of national intelligence.

“I’m concerned,” said Sen. Chris Murphy (D-Conn.), a member of the Foreign Relations Committee. “Each of these individuals may have great merit in their own right, but what we’ve learned over the past 15 years is that when we view problems in the world through a military lens, we make big mistakes.”

Well, we've also had mistakes made when people without military experience have been in charge. I don't think there is a causal relationship between being retired military and making mistakes. This betrays a fundamental misunderstanding, I think, of the military. Just because someone has had a military career doesn't make that person see military force as the fundamental answer to every foreign issue. If anything, people who have fought in battle and seen their friends die are perhaps even more likely to see military force as a last resort and to be more careful about engaging without a well-considered plan of how to proceed and how to deal with unseen contingencies. We have been engaged in a worldwide struggle against terrorism and the military has been on the front lines of that war. I'm not sure why someone who has spent all his or her life as a civilian in politics, business, or academia would have superior judgment.

And a politician saying he doesn't have any objection against one individual such as General Kelly at Homeland Security or General Mattis at Defense, but is just concerned about the possible mistakes someone with a military mindset might make seems like he saying that the military are more likely to make mistakes on the world stage than civilians. That's just silly, especially after the mistakes we've observed since 9/11 by civilian leaders of both parties. People of civilian backgrounds have had trouble before as leaders of cabinet departments and have made mistakes. Is that because they were civilians?

Daniel Benjamin, the former senior counterterrorism official at the State Department in the Obama administration and now a professor at Dartmouth College, said having too many generals in what are traditionally civilian positions is “a matter of deep concern.”

“Generals as a rule believe in hierarchies and taking orders, and if the president gives them an order you have to wonder how likely they are to push back against it,” Benjamin said. “Generals have one set of skills, and diplomacy is not in the top drawer of that tool kit.”

On social media Wednesday, there was some snarky commentary about Trump’s emerging Cabinet resembling “a military junta.” Anthony Scaramucci, a Trump transition team official, defended Trump’s selections on Twitter: “Decorated American Generals aren’t warmongers — they’re among the most intelligent, disciplined & patriotic people our country has to offer!”

Most military officers have spent their entire careers within structured organizations with large staffs and clear chains of command. Sometimes they struggle in the more freewheeling world of politics and policy — to say nothing of what is expected to be the Trump White House’s unpredictable environment.

“Great generals don’t always make great Cabinet officials,” said Phil Carter, an Iraq War veteran and senior fellow with the Center for a New American Security.

And some do. The article points to Brent Scowcroft, a former Air Force general who was George H.W. Bush's national security adviser and well regarded. We didn't hear any of these concerns when Colin Powell was nominated to be Secretary of State. That was widely hailed as a brilliant choice that gave people more confidence in George W. Bush's presidency. And Powell certainly benefited from the admiration the media had for him. There was no talk about the detriment of his having come from a military background. A Clinton official has more good sense about all this nonsense.

Galston, a Democrat who served as a White House policy adviser to former president Bill Clinton, said the concerns about generals “charging ahead” with no regard for legal or constitutional constraints — or without a willingness to challenge the president’s decisions — are misplaced. Galston said modern-day generals are trained to navigate a minefield of potential conflicts and legal concerns.

“They’re schooled to believe that if they or any subordinates receive an unlawful order, it’s not to be obeyed,” Galston said. “If you asked me, would I prefer a government of generals or a government of lawyers, that’s not an easy choice. We’ve experimented with a government of lawyers, and that hasn’t been so fantastic, has it? Maybe it’s time to give the generals a chance.”

Trump, who received multiple draft deferments and who has no military experience beyond his years at a military boarding school, is said to be drawn to generals by their swagger and dazzled by their tales from the battlefield.

That may be true, but "swagger" and "dazzled" aren't neutral words - they're terms of judgment and, frankly, gossip. The allegation might fit our image of Trump, but the Washington Post just throws this unattributed gossip without any indication of who said it? Is it someone anonymous? Well, we get an idea five paragraphs lower down in the story.

Sen. Patrick Leahy (D-Vt.) said of Trump, “For a guy who got four or five deferments from the draft, he seems pretty impressed with the military.”

Unless they have different sources, that first sentence should have been, "Democrats allege that Trump, who received multiple draft deferments and who has no military experience beyond his years at a military boarding school, is said to be drawn to generals by their swagger and dazzled by their tales from the battlefield." When did the Post decide that they should report unattributed gossip as fact, especially if those making the charge are his political opponents?

And let's say that it's true that Trump is dazzled by military officers. When a man with little foreign policy experience beyond making hotel deals is now president while we're in two wars with military involvement around the world, I'm rather comforted that he'll have serious people with experience in these conflicts advising him. Perhaps Trump will learn that, contrary to his boastful posturing, he doesn't "know better than the generals."

For as long as I’ve been a law professor, I’ve written about the risk of executive overreach. Primarily, whatever precedents President Obama set to achieve progressive goals, the next President could then use advance conservative goals. This one-way-ratchet is the nature of the Presidency. Now, on the dawn of the Trump Presidency, the chickens are coming home to roost....

A secondary risk 0f using executive action is that informal governance through what I called “government by blog post” can be easily undone. Policy memoranda from the Department of Homeland Security, like DACA or DAPA? Repealed in a second. Payments to insurance companies not authorized by statute? Halted after the inauguration. “Dear Colleague” letters ordering schools to change longstanding interpretations of Title IX? Withdrawn quickly. So much of the Obama Presidency depended on an effective third term: the Affordable Care Act, Immigration, Clean Power Plan, Net Neutrality, etc. Between the formal regulations that can be disapproved through the Congressional Review Act, and the informal regulations that can be rescinded instantaneously, much of the President’s administrative legacy will be gutted in the first 100 days.

Far more sustainable are those regulations that went through the notice-and-comment process. To rescind these, agencies must engage in new rule-makings, which are subject to challenge by organizations. Courts can then scrutinize if the regulations are being adopted for valid reasons, or merely because the agency changed its mind. One such regulation that will not have such scrutiny is the Title IX “Dear Colleague” letter.

He links to a column by Jeannie Suk Gerson in The New Yorkerabout what this means for the letter that Obama's Department of Education's Office for Civil Rights (O.C.R) instructing schools that they

The letter helped win case in the Fourth Circuit for a Virginia high school student, Gavin Grimm, who transitioned from female to male and wants to use the boys' bathroom at school. The case will be before the Supreme Court this term. And the case may well revolve around a letter that a Trump Education Department could rescind.

Now the Supreme Court is set to hear Grimm’s case. The Court is supposed to decide whether O.C.R.’s interpretation of the phrase “on the basis of sex” is entitled to judicial deference. In other words, should the agency’s interpretation carry the day even if it is not one that the Justices think is best? If so, the Court would effectively convert the executive agency’s informally expressed views into the law of the land, because O.C.R. is supposed to be expert in civil rights in education.

The tricky part is that many expect the expert agency’s views to change shortly after January 20th, when Trump’s O.C.R. is installed. (Dear Colleagues: Never mind, we take it back.) Come January, advocates of transgender rights, who have enthusiastically supported judicial deference to O.C.R., will have reason for an extreme pivot, given that the new O.C.R. is unlikely to view “sex” as an “internal sense of gender.” It is awkward now for Grimm’s lawyers to argue zealously for the notion that the agency knows best, when only weeks from now, and in coming years, that doctrine is more likely to harm than to help transgender students.

And now we're going to learn the fragility of such executive actions. They can be brushed aside by a new executive.

Anticipated as an opportunity for the Court to consider and perhaps vindicate transgender rights, Grimm’s case is instead poised to illustrate the fragility-in-strength of Obama’s lawmaking-by-letter. On the one hand, such letters have been a powerful tool of this Administration—and have been met by critics with complaints of executive overreach. On the other hand, the recent accomplishments may well be trampled in the changing of the guard: Trump’s O.C.R. can simply issue informal letters retracting prior positions on Title IX that were expressed in other informal letters.

Had Obama’s O.C.R. employed the more onerous procedures, involving public notice and opportunity to comment, that are required to enact a proper legal regulation, its policy would be difficult to dislodge; the new Administration would have to invest in similarly costly and time-consuming procedures to get rid of it. Block noted, “There’s no question that, as a practical matter, regulations protect people more than guidance does.” What’s more, this Administration’s method of threatening to enforce guidance documents as if they were rules is now laid out and ready-made for Trump’s Administration to deploy at will....

Even before the Supreme Court hears or decides Grimm’s case, Trump’s O.C.R. could issue a new interpretation concerning transgender students. The Court might see such a turnabout as reason to dismiss the case (which leaves the Fourth Circuit’s decision in favor of Grimm in place), or to send it back to the Fourth Circuit to consider in light ofhttps://www.the74million.org/article/74-interview-tennis-great-andre-agassi-serves-up-school-buildings-to-69-charters-and-counting the change. But the Court would not have to take either of these actions. And the consequence of a dodge during this term is that the next time a transgender case gets to the Supreme Court, we would likely be talking about deference to Trump’s O.C.R., by a Court with at least one more conservative Justice on it.

If the Court does go ahead and decide the case this term, then the conflicting Trump and Obama interpretations, so close in time, from the same agency, would likely convince the Court to treat O.C.R. as not having a consistent and considered view worthy of deference. Better yet, though, the Court should take the occasion to say that a mere letter, whatever its content, does not merit judicial deference, precisely because it bypasses the process of public input that we should want the executive branch to adopt in forming views on important policies. That point should resonate now more than ever.

Regardless of one's position on the underlying issue of transgender rights in public school bathrooms and locker rooms, perhaps liberals can understand why Obama's pattern of taking such executive actions without going through the traditional steps. Blackman comments on why Obama's administration acted as they did without going through the usual procedures.

Why didn’t it? A combination of hubris and invincibility. They truly believed that the letters were sufficient to bludgeon schools into compliance, and they didn’t think any court could ever stop them this way because schools wouldn’t risk losing funding. Gloucester County School Board called their bluff. Now, people who actually depend on these regulations (such as the ACLU’s client) are out of luck

House Minority Leader Nancy Pelosi (D-Calif.) said on Wednesday that House Speaker Paul Ryan’s (R-Wisc.) proposal to cut Medicaid spending over time to help balance the federal budget would prevent seniors from seeing the doctor of their choosing.

“And I might add with what they want to do to the Affordable Care Act and what they want to do in the Ryan budget to Medicaid – a trillion dollars over 10 years taken out of Medicaid,” Pelosi said. “Two thirds of that goes to long-term heath care to our seniors.”

“They won’t be able to go to their own doctor if you take this away,” Pelosi said. “So all of this is connected. This is an assault on the stability of health for seniors in our country. An all-out assault.”

Really? How many people lost their health plans and doctors under Obamacare? How many Medicaid patients can't find a doctor because doctors don't want to take Medicaid funds? When their only plan to address looming deficits in entitlement plans is to tax the rich to pay more, Democrats shouldn't posture as they're the only ones with solutions.

Efrem Hoffman, founder of a market analysis firm called Running Alpha, said Trump's tweets represent a new source of market information for those willing to study them and identify patterns. "One specific strategy that I am working on is looking at tweets that come from Trump's Android phone — as these have been shown to reflect his personal beliefs and convictions," Hoffman said. "Somewhat more unfiltered than tweets coming from other mobile devices that reflect the opinions of his colleagues/staff."

Hoffman said he is analyzing the sequencing of Trump's tweets in terms of volatility between Trump's episodes of anger or jubilation, and cross referencing those episodes with keywords associated with specific industries of policy categories. He said he is looking at the sentiment of Trump's followers and how the tweets are received as a possible measure of market player uncertainty.

"This type of indicator can be used along with the VIX curve conviction levels to identify changes in market trends on different scales," Hoffman said. One pattern he has identified so far: When market sentiment is positive, Trump's positive comments — no matter how vague — tend to get more traction in the market.

David is not convinced. "I think the estimated amount of 'Twitter algos' is vastly overblown," he said. "It's more of an academic exercise."

While I admire the ingenuity involved in creating such an algorithm, there is something quite appalling that a president's stray tweets can have such an impact on markets.

Decades of positive results from homeschool families still haven't stopped their critics from repeating outdated, debunked myths. Education Secretary John King recently told an audience he worries that most homeschool students aren't "getting the range of options that are good for all kids." He went on to state that he is concerned that homeschool students are not getting the "rapid instructional experience they would get in school" unless parents are "very intentional about it."

Why would he assume that parents would shortchange their own children and that teachers and administrators know better? Think of all that parents give up to devote themselves to educating their children at home. It seems like an exhausting prospect. There is plenty of evidence that homeschooled students are doing just fine, even better than average students, on both academic and social standards. Of course, that might be because of the self-selected group of young people who are homeschooled. They might be the sorts of students who would have done well anywhere.

Homeschooling is not the right option for every child, but it is the best option for many. Families should be free to choose the education that will help their child succeed – be it home, private, public, or charter school – not forced into a one-size-fits-all system. Instead of casting doubts on their efforts, Secretary King should champion the hardworking parents who sacrifice daily to ensure that their children receive the best education possible.

I think the real reason King is questioning homeschooling is because, as a Democrat, he's a big advocate of public schools and teacher unions. And one thing such teachers are adamant about is their opposition to any sort of schooling that allows parents to make a choice other than public schools.

When I was at the Social Studies conference this past weekend, I listened to a panel of Ruth Marcus and Michael Gerson talking about hyperpartisanship. Mostly, both of them expressed their worries about Trump. One teacher asked Marcus if there was anything in a Trump administration that she was optimistic about. Her answer was that she was quite enthusiastic about his nomination of Betsy DeVos as Secretary of Education. As soon as Marcus mentioned DeVos's name, almost the entire audience of teachers started hissing and shaking their heads as Ruth Marcus went on to say how she supported all sorts of school choice because she had been able to make decisions for her own children's education and would like to see other children have more choices. Needless to say, this was not a popular opinion in that auditorium, but I was quite happy to hear what she had to say about DeVos.

Agassi’s philanthropic efforts have long focused on children. The tennis star dropped out of school after eighth grade to pursue the sport professionally — a decision he has said he resented and one that drove him to push for more educational choices for kids.

He opened a charter school, the Andre Agassi College Preparatory Academy, in his native Las Vegas in 2001, and more than a decade later he teamed with real estate investor Bobby Turner to launch the for-profit Turner-Agassi Charter School Facilities Fund, which pays for facilities for new charter schools. Charter management organizations scale up rent payments as enrollment grows and, after a few years, buy their building from the fund.

Rocketship Rise Academy is the 69th school the fund has supported. Fund leaders expect to open an additional 100 schools around the country, serving 55,000 students by 2020.

I've been listening to the podcast of Bill Kristol's conversation with Clarence Thomas. I highly recommend it and it's interesting to listen to given that it was recorded a couple of weeks before the election. I had a smile on my face as I listened on the drive home. He just seems like such a thoughtful, nice guy. If you haven't read his memoir, My Grandfather's Son, it is well worth the read to learn about his impoverished background being raised by his tough, but loving grandfather and his experiences in college and law school and how his career almost didn't get started as he couldn't find a job after Yale Law School. He talks in the podcast about his love of reading inculcated in him by the nuns who ran the segregated school in South Carolina he went to and the joy he found reading at the Carnegie Library in his town - a library that was, of course, segregated in those days. What really moved me was his answer to a question about whether he ever felt discouraged about the course of the country and the Court. His answer was that his Catholic religion had taught him that what is never acceptable is to despair. He felt that he must keep deciding cases as he thinks right because that is what is most important, not trying to win or change the Court, but simply to do what he believes is right. Given the hate this directed his way by so many on the left, he seems like a man who is at peace with who he is and what he believes. And he still seems to get a great joy out of his life. That makes him a role model for anyone.